The Truth About Citizens United and Outside Campaign Cash

The misconception that the Supreme Court case enabled independent campaign supporters to indulge in political expenditures is pervasive and probably un-correctable.

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Protesters shout during a demonstration in front of the U.S. Supreme Court building, on the anniversary of the Citizens United decision, in Washington. (Reuters)

Facts matter, Montana Attorney General Steven Bullock argues to the Supreme Court in ATM v. Bullock, defending a state court decision upholding Montana's ban on independent corporate expenditures, which defies Citizens United. The plaintiffs/petitioners in ATM argue that Montana's high court acted in "blatant disregard" of its duty to follow Supreme Court rulings on constitutional rights, Bullock notes. But "that can only be true if facts are irrelevant." The fact is that Montana's law is effectively consistent with Citizens United, he argues: As a practical, factual matter, it operates to impose disclosure requirements that Citizen United upheld; and unlike the abstruse, federal regulatory scheme at issue in Citizens United, Montana law is "minimally burdensome" and enforced through civil rather than criminal sanctions.

It seems unlikely that the Supreme Court will be persuaded by this effort to distinguish Montana's ban on corporate speech from the federal ban struck down only two years ago. (Justices Ginsburg and Breyer, who dissented in Citizens United, joined in issuing a stay of the Montana court ruling, noting that state courts are bound by Supreme Court decisions.) The Court's Citizens United majority seems equally unlikely to reconsider, narrow its ruling, and limit the First Amendment rights of corporations to engage in political speech, although Breyer and Ginsburg have urged them to do so, citing the "huge sums currently deployed to buy candidates' allegiance."

Facts matter, supporters of Citizen United reply to its critics, and the fact is that corporations are responsible for only a small percentage of the "huge sums" deployed in the 2012 election. Individuals have contributed most of the funds. In fact, Senate Majority Leader Mitch McConnell points out (in an amicus brief authored by Floyd Abrams) the "corporate tsunami" predicted (and alleged) by Citizen United opponents "simply did not occur."

"There are now facts that bear on the concerns expressed by (Citizens United) critics," the McConnell brief stresses:

A review of FEC records for independent expenditure-only committees -- i.e. the so-called Super PACs -- supporting the eight leading Republican Presidential candidates has evidenced minimal corporate involvement in the 2012 election cycle ... not a single one of the Fortune 100 companies has contributed a cent to any of these eight Super PACs ... of the entire $96,410,614, (contributed to the Super-PACs,) 86.32% was contributed by individuals, 12.87% by privately held corporations and less than one percent -- 0.81% -- by public companies.

These are the facts often trivialized or ignored by opponents of Citizens United, many of whom should and probably do know better. Consider the amicus brief submitted by Free Speech for People (et al.). It stresses recent, overall increases in independent expenditures and generally conflates corporate and individual spending, referencing "super-PACs funded by the corporate and wealthy elite" and citing large expenditures by individuals, like Sheldon Adelson, to buttress arguments against Citizens United.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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